Wednesday,18 October, 2017
Current issue | Issue 1302, (30 June - 13 July 2016)
Wednesday,18 October, 2017
Issue 1302, (30 June - 13 July 2016)

Ahram Weekly

Government appeal on Tiran-Sanafir deferred

A request to recuse the court overseeing the government’s appeal against a ruling stopping the transfer of two Red Sea islands to Saudi Arabia is prolonging the government’s ordeal, writes Amira Howeidy

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Al-Ahram Weekly

For the second time in less than a week the controversial case of the Red Sea islands Egypt ceded to Saudi Arabia has taken an unexpected turn. On Sunday the lawyers who opposed the transfer requested that an appeals court be recused.

In response, the panel immediately got up and left the hall, which erupted in jubilation, chanting — amid ululations — “Egyptian! Egyptian!” in reference to ownership of the two islands.

The scene in Hall Number 12 at the State Council — the judicial body that looks into cases filed against the government — captured the chaos and political dynamics at play in the tug of war between the government and its critics in a rare confrontation before the courts.

Egypt ceded the islands of Tiran and Sanafir to Saudi Arabia in April during a visit by Saudi monarch King Salman. A cabinet statement said that an Egyptian-Saudi maritime border agreement had been concluded after six years of negotiations, but did not reveal the details of the deal.

The surprise announcement was met with a public outcry and sparked protests, despite official assurances that the islands belonged to Saudi Arabia but came under Egyptian sovereignty in 1950 with Saudi permission during the Arab-Israeli conflict.

A case filed by a number of lawyers opposing the agreement was accepted by the Administrative Court and on 21 June it issued a ruling that nullified the deal, refuted the government’s argument and declared Tiran and Sanafir Egyptian and under Egyptian sovereignty.

The ruling dealt an unexpected blow to the government. The agreement was waiting to be referred to parliament for discussion and ratification. Prior to the Administrative Court’s ruling, this would-be process had faced no obstructions. Both the Saudi Shura Council and cabinet approved the deal in May.

The government appealed the ruling before the Supreme Administrative Court on 23 June, which announced an urgent session on Sunday, 26 June.

The government’s appeal was presented on behalf of the president, the parliament speaker and the ministers of defence, foreign affairs and interior. It argued that the judiciary has no jurisdiction over the islands issue since it is a question of sovereignty, which is the same argument presented by the government’s representative before the Administrative Court.

Citing Article 151 of the Egyptian Constitution, the appeal said that it is for the House of Representatives, not the judiciary, to discuss and ratify such agreements.

Both sides have been referring to Article 151, offering varying interpretations of its content. The article stipulates that the president represents the state in foreign relations and ratifies treaties after the approval of the House of Representatives. Agreements of peace and alliances and related questions of sovereignty may not be ratified without a public referendum that approves them.

“In all cases, no treaty may be concluded that is contrary to the provisions of the constitution or that leads to concession of state territories,” adds the article.

In its appeal, the government questioned the authenticity of some of the documents and maps presented before the Administrative Court by the plaintiffs to support their argument that the two islands are Egyptian, not Saudi.

“Some of them are copies, which cannot be verified, while others are from the Internet,” said the appeal. The 19-page appeal concluded its argument by requesting a stay of execution.

Observers had predicted that the appeals circuit at the Supreme Administrative Court would suspend last week’s ruling. This would have allowed the Egyptian-Saudi agreement to be ratified by parliament, ultimately avoiding a confrontation between the legislative and judicial branches of the state and putting a swift end to the conundrum.

This much was expressed by Minister of Parliamentary Affairs Magdi El-Agati who was quoted as saying (ahead of the government’s appeal) that he hoped the Supreme Administrative Court would accept the government’s appeal and finalise it in a week’s time. His statements were later used to temporarily interrupt the process.

Following a brief presentation of his case, where Rafiq Al-Sherif, the government’s representative, described Egypt’s six-day sovereignty of the two islands as “occupation”, (further antagonising the attendees who packed the hall), lawyer Mohamed Adel Suleiman, one of the plaintiffs in the opposing camp, took the microphone and told the court that he requested its recusal.

Suleiman cited, among other reasons, El-Agati’s statements as a form of interference by the executive authority in the judicial authority’s work because the gist of his statement is “a directive” to the Supreme Administrative Court. The minister was both a former councillor of the Supreme Administrative Court and a former member of this appeals circuit, Suleiman argued in his recusal request.

Other reasons included in the recusal request pertain to the head of the court who was seconded to Cairo University, which awarded the Saudi monarch an honorary doctorate. Another member of the same court is seconded to the Ministry of Foreign Affairs whose minister is listed among the six plaintiffs in the government’s appeal.

The head of the State Council is expected to refer the recusal request to another circuit to decide on the matter. If the request is rejected, the original circuit will proceed. Either way, the lawyers behind the recusal are satisfied.

“The whole point of the recusal request was to emphasise and point to the problems and dubious circumstances surrounding this appeals circuit,” said Khaled Ali, a rights activist and former presidential candidate who is leading the case against the Egyptian-Saudi maritime border agreement.

Ali said the recusal request will most likely be rejected and that his team of lawyers are considering withdrawing it. “The objective was realised and it wasn’t to antagonise the court,” he added.

The head of the appeals circuit, Abdel-Fattah Abu-Leila, reaches retirement age this week and will be replaced, which means a new head will be appointed once the appeal process resumes.

“Why was a judge who was days away from retiring so eager to head that circuit unless he was intent on finalising it at Sunday’s session before stepping down?” Ali asked.

The lawyers and critics of the deal say the delay caused by the recusal request is an achievement, even if temporary. Said Ali: “The ruling by the Administrative Court invalidating the transfer of the islands to Saudi Arabia still stands.”

“These are legal acrobats,” said Abdel-Moneim Said, a political analyst and head of the Cairo-based Regional Centre for Strategic Studies. “They serve to create obstacles to serve a political purpose, which is defaming the regime.”

He continued, “This isn’t about the two islands as much as it is opposition to the regime.”

The government was “scratched” and its performance since the signing of the Egyptian-Saudi agreement had been less than competent, he added. “They lost this round.”

“But the question is: Has the bloc supporting the regime been affected by this? I don’t think so.”

If the Supreme Administrative Court accepts the government’s appeal, the tables will turn, Said added.

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